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What do attorneys look for to assess testamentary capacity?

| Apr 10, 2020 | Wills |

Attorneys who aid clients in preparing their wills are required to assess that individual’s testamentary capacity to execute such a document. The reason why lawyers are required to do this is because the decisions that you include here carry a lot of weight. If you’re not fully aware of the choices that you’re making, then you may end up making decisions that aren’t aligned with your final wishes.

Your Sacramento attorney will want you to demonstrate that you know about the breadth of property that you own. They’ll want to make sure that you understand what the purpose of a will is and what the implications of disposing of certain property may be. They’ll expect you to know who your relatives are and what their rights to your estate are if you don’t draft a will.

Attorneys are required to assess a testator’s testamentary capacity to make sure that they’re coherent enough to understand the implications of making certain choices and that they’re not being subjected to undue influence or pressure from someone else.

Attorneys are only required to assess an individual’s testamentary capacity at the time that they’re actually in their office drafting their will.

This means that an aging testator may be experiencing a decline in cognitive functions due to either a disease or age, yet still experience some more lucid moments in which they have the necessary testamentary capacity to draft a will. Most jurisdictions’ laws allow for a testator experiencing some type of health decline to execute, revoke or modify their will provided that they do so during a more coherent interval.

Memory disorders, diseases and aging are unique in that it’s unlikely for two individuals who are experiencing any of these health declines to experience the same symptoms. One person may continue to have a strong mental acuity at an advanced age whereas another does not. Illnesses may affect two individuals differently.

An attorney can assess the testamentary capacity of your loved one as they set out to draft their will so that it minimizes the chances of it not being upheld in a California court of law.

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